The restriction was imposed after RSPB investigations staff passed video footage to police of a gamekeeper allegedly setting illegal traps, baited with a dead woodpigeon, very close to a goshawk nest in NE Scotland”.

Here’s a clip from that video evidence:

From this, we were able to deduce that this alleged wildlife crime took place in March 2014 ‘nr Tarland, Aberdeenshire’, although the specific location was not given.

So at this stage we know that an alleged wildlife crime had taken place, we know that a criminal prosecution is not going to happen (because the case is now time-barred), and we know that SNH has imposed an individual General Licence restriction on a gamekeeper as a supposed sanction. The identity of the alleged offender remains a secret, as does the name of the estate where the alleged offence was committed. This lack of transparency is, frankly, appalling, especially when former Environment Minister Paul Wheelhouse had stated when he first introduced General Licence restrictions in 2014 that he expected them to function as “a reputational driver”. Not much chance of that happening when the details of a case are kept secret.

In early October 2017 we submitted an FoI to SNH to try and find out more details about this case. We asked for:

The name of the person who had been given a General Licence restriction (we didn’t expect to be told but thought we’d ask anyway – you never know)

The occupation of that person (we already knew from the RSPB press statement that he was a gamekeeper but we wanted SNH to confirm this)

The name of the county in which this individual resides (we already knew from the RSPB press statement that the alleged offence had taken place in Aberdeenshire but we wanted SNH to confirm this)

The name of the estate from where the Police evidence of alleged raptor persecution had been collected

An explanation about why an individual and not an estate was the recipient of the General Licence restriction

An explanation about how SNH intends to monitor the activities of the individual for potential breaches of his General Licence restriction.

SNH has now responded and it’s astonishing:

It looks like SNH has been taking lessons from Natural England in the withholding of information that should be in the public domain. It’s understandable that SNH can’t disclose the alleged offender’s identity, but withholding details of his occupation and the county in which he resides because “this would allow them to be identified” is obviously nonsense, and we already know this information from the RSPB press release!

We would argue that it is in the public interest to know the name of the estate on which this alleged offence took place (and we do know from various local sources it was on a game-shooting estate and that this gamekeeper was employed by that estate). Why should that information be kept secret? Who is SNH shielding, and why?

And does anyone actually believe that Police Scotland, no matter how well-intentioned, has the resources to track this gamekeeper’s activities for the next three years to ensure he’s not breaching the terms of his General Licence restriction?!

Whilst this response doesn’t get us any further forward in knowing the specifics of this case, what it does demonstrate, quite clearly, is that the General Licence restriction, introduced as a way of publicly embarassing estates where there is evidence of wildlife crime but, due to perceieved evidential difficulties, the cases don’t ever reach the courts, is simply not working.

Tomorrow’s blog, on another General Licence restriction case, will emphasise this point again but on a whole bigger scale.

The ability for Scottish Natural Heritage (SNH) to impose a General Licence (GL) restriction order on land where there is evidence of raptor persecution taking place came in to force on 1 January 2014. This measure, based on a civil burden of proof, was introduced by then Environment Minister Paul Wheelhouse in response to the continuing difficulties of meeting a criminal burden of proof to facilitate a criminal prosecution.

Whilst these GL restrictions are not without their limitations (because estates can simply apply for an individual licence instead – see here, but also see here where SNH recently revoked an individual licence for alleged non compliance), Wheelhouse argued that as the restriction notices will be made public, they should act as a ‘reputational driver‘.

Whilst we were pleased to see SNH impose these latest GL restrictions last month, we were also aware of a number of other raptor persecution incidents that have been recorded since 1 Jan 2014 that would potentially meet the criteria required for a GL restriction so we wanted to find out whether SNH was getting on with these.

Photo: an illegal pole trap filmed by RSPB Scotland on the Brewlands Estate in the Angus Glens, July 2015. These traps have been outlawed for over 100 years.

In early October we submitted an FoI to ask SNH how many cases were currently under consideration for a GL restriction. We are pretty shocked by the response received last week:

“At the time of your request, no General Licence restrictions were under consideration“.

Really? Why the hell not? We know of at least nine cases that should be being considered, and these are just off the top of our heads – there will be others, as we know Police Scotland is still withholding information about a number of other raptor persecution incidents.

Here are the nine incidents we know about that have all occured since 1 January 2014 when SNH was given the power to impose a GL restriction:

Newlands Estate, Dumfriesshire. Gamekeeper William (Billy) Dick was convicted in 2015 for killing a buzzard on the estate in April 2014. He threw rocks at it and then stamped on it. The estate owner was prosecuted for alleged vicarious liability but then the Crown Office dropped the prosecution in April 2017, saying it wasn’t in the public interest to proceed (see here).

Brewlands Estate, Angus Glens. A gamekeeper was prosecuted for the alleged repeated setting of a pole trap on this estate between 9-17 July 2015. The Crown Office dropped the prosecution case in April 2017 because the video evidence was deemed inadmissible (see here). Another gamekeeper on this estate thought this result was hilarious.

Unnamed pheasant-shooting estate, Lanarkshire. In September 2015 a set pole trap was discovered on a bench directly outside a pheasant-rearing pen on an unnamed estate. Police Scotland apparently dropped the case, for unknown reasons.

Gamekeeper in Ayrshire. In May 2016 a named gamekeeper was charged after allegedly being caught using gin traps on a neighbouring farm of the estate on which he was employed. The Crown Office dropped the prosecution in March 2017 after reportedly ‘getting the dates wrong on its paperwork’ (see here).

Invercauld Estate, Aberdeenshire. In June 2016, walkers discovered a number of illegally-set spring traps staked out on a grouse moor. Two of the traps had caught a Common Gull by the legs. The bird had to be euthanised. There was no prosecution. ‘Some action’ was taken by the estate but whatever this action was it has remained a closely-guarded secret between the estate, the Cairngorms National Park Authority and the Scottish Government (see here).

Leadhills Estate, South Lanarkshire. On 4th May 2017, witnesses observed the shooting and killing of a hen harrier on this estate. Police Scotland appealed for information (see here & here). As far as we’re aware, there are no impending prosecutions.

Unnamed grouse shooting estate, Monadhliaths. On 7 June 2017, a member of the public found a buzzard caught in an illegally-set spring trap that had been staked out on an unnamed grouse moor in the Monadliaths. The buzzard was released. Police Scotland appealed for information. Inspector Mike Middlehurst of Police Scotland commented, “Unfortunately, there are some who continue to deliberately target birds of prey; there is nothing accidental in the setup of these traps“. As far as we’re aware, there are no impending prosecutions.

So why haven’t any of these cases been considered for a GL restriction? Is it because SNH is still waiting for Police Scotland to provide ‘formal information packages’ on these cases? (Remember, SNH can only consider potential GL restrictions based on evidence provided to them by Police Scotland). We know that Police Scotland has been slow in delivering this info to SNH in the past (e.g. see here) – are they still dragging their feet?

Or, is it the case that Police Scotland has already provided information to SNH about each of these nine cases and SNH has, for whatever reason, decided not to impose a GL restriction?

Isn’t it in the public interest to know, and importantly to understand, what is happening with these cases? We think so. And that’s why we’ve submitted an FoI to find out.

So, SNH has today announced it has imposed two General Licence restriction orders, based on evidence provided by Police Scotland of alleged raptor persecution crimes.

We know that one of those restriction orders has been placed on Edradynate Estate, Perthshire, because SNH has been quite upfront about it and has named the estate (see here).

But what about the other General Licence restriction? Well, according to the SNH press release, this has been imposed on “an individual” rather than on an estate.

This in itself is interesting. We know from the SNH framework for imposing these restrictions that this action can be taken against an individual, as well as on certain areas of land, but the framework document suggests that imposing it on land would be preferable to imposing it on an individual:

“While the wording provides for the exclusion of individuals, it is the intention that where SNH has robust evidence that wild birds have been killed or taken or where there is intention to do so other than in accordance with a licence, SNH will exclude the area of land on which such evidence is found from General Licences 1, 2 and/or 3“.

Hmm. So who is this individual and why did SNH impose the restriction on him/her, rather than on an estate?

The SNH press release points the reader to the SNH webpage on General Licences for “full licence restriction details“. However, when you look at the SNH webpage, all you find is this:

Is SNH having a laugh? The “full licence restriction details” of this particular GL restriction order amounts to one sentence:

“In addition [to the restriction imposed on Edradynate Estate] SNH has imposed a restriction prohibiting the use of General Licences by an individual for 3 years from 15th September 2017“.

That’s it? No name? No information on the area, let alone the name of the land where the evidence of raptor persecution took place? Not even the region?

What’s with the secrecy? Who is SNH shielding, and why?

This could be absolutely anyone! Is it Nicola Sturgeon? Is it Alex Salmond? Is it JK Rowling? Highly unlikely, it has to be said, but you get the point we’re trying to make.

And what happened to the transparency that was promised when former Environment Minister Paul Wheelhouse first announced this new measure to tackle ongoing raptor persecution? He said he expected details of General Licence restrictions to be published on the SNH website to act as “a reputational driver“. That’s not going to happen if SNH withholds the details, is it?

This is a very dangerous precedent to set. SNH has previously withheld details of estates that were being considered for a GL restriction but in that case, the justificiation for being all secret squirrel was reasonable: the GL restrictions hadn’t yet been imposed, but rather the estates had been notified of an intent to impose, and SNH argued that the estates needed time to respond/appeal (see here). That was fair enough.

But in this case, SNH has already imposed the GL restriction, and we’re struggling to understand the justification SNH might have for keeping the details secret.

What is it with statutory agencies and their reluctance to release information that’s clearly in the public interest?

We’ll be submitting an FoI to SNH to ask for further details, and, based on the response, we’ll consider appealing the decision to the Scottish information Commissioner.

In the meantime, have a look at today’s press statement from RSPB Scotland about these latest GL restrictions. This gives us more of a clue about the recipient of the restriction order. The statement includes the following quote from Head of Investigations, Ian Thomson:

“The other restriction was imposed after RSPB investigations staff passed video footage to police of a gamekeeper allegedly setting illegal traps, baited with a dead woodpigeon, very close to a goshawk nest in NE Scotland.”

Ok, now we’re getting somewhere. The recipient of the GL restriction is a gamekeeper, working in NE Scotland, who was filmed allegedly setting illegal traps close to a goshawk nest. And the RSPB has even provided a video clip of the alleged offence, with the individual’s face pixellated (presumably done on legal advice).

Well, quelle surprise! Another gamekeeper trying, allegedly, to persecute a goshawk in north east Scotland. This is becoming quite a habit in this part of the country. First we had gamekeeper George Mutch, caught on video trapping and battering to death a goshawk on the Kildrummy Estate in 2012, crimes for which he went to prison (see here), then we had a gang of masked armed men caught on video shooting at a goshawk nest on Forestry Commission land at Glen Nochty in 2014 (see here), and now this latest case.

But who is this latest gamekeeper and on whose land was he working when he allegedly set this trap?

More on this in the next blog…..

UPDATES:

More on the mystery gamekeeper with the general licence restriction (here).

Public prosecutors from Scotland’s Crown Office have dropped yet another case of alleged wildlife crime.

According to an article in the Sunday Post (see here), gamekeeper John Charles Goodenough, 32, had been charged after he was allegedly caught with illegal gin traps covered in animal blood, with dead fox cubs found nearby, in May 2016. It is reported Goodenough was employed at the time by Dalreoch Farming & Sporting Estates, owned by the well-connected Wellesley family. It was alleged that Goodenough was using the illegal traps on a neighbouring farm in Ayrshire.

The case was due to be heard at Ayr Sheriff Court on 27 March 2017 but two days prior to the hearing, the Crown Office dropped the case ‘after getting the dates wrong on its paperwork’.

This latest case brings the total of recently abandoned prosecutions for alleged wildlife crime to five. That’s five abandoned cases in the space of two months:

25 March 2017 – gamekeeper John Charles Goodenough (Dalreoch Estates), accused of the alleged use of illegal gin traps. Prosecution dropped due to paperwork blunder by Crown Office.

11 April 2017 – landowner Andrew Duncan (Newlands Estate), accused of being allegedly vicariously liable for the actions of his gamekeeper who had earlier been convicted for killing a buzzard by stamping on it and dropping rocks on to it. Prosecution dropped due to ‘not being in the public interest’.

21 May 2017 – an unnamed 66 year old gamekeeper (Edradynate Estate), suspected of alleged involvement with the poisoning of three buzzards. Crown Office refused to prosecute, despite a plea to do so by Police Scotland.

Given how difficult it is to get just one wildlife crime case anywhere near a court, to have five abandoned in the space of two months does not inspire confidence in the criminal justice system.

In fact such was the public concern about some of these cases being abandoned due to the supposed inadmissibility of video evidence, last month the Scottish Parliament’s Environment Committee wrote to the Crown Office to ask for an explanation (see here).

We are not legally qualified to comment in depth about how good or how poor the Crown Office’s response is. If any of our legally-minded readers (Adam?) would like to comment, please do so.

However, what we can say is that this response does not address the question of why the Crown Office made the decision about inadmissibility instead of allowing a court to decide, as has happened in previous cases (e.g. see here).

Nor does this response address the question of why the Crown Office did not believe the RSPB ‘s explanation for their use of video surveillance for monitoring a hen harrier breeding attempt at Cabrach Estate. The Crown Office maintains, without explanation, that the RSPB had installed the video ‘for the purpose of detecting crime’, whereas the RSPB maintains the camera was installed as part of a legitimate monitoring study, an explanation which had been accepted by both the Crown and the court in a similar situation in another case (here).

The RSPB’s case is not so strong in the Brewlands Estate case, where a camera was installed to monitor an illegal pole trap (a trap that the RSPB had since made safe by flicking on the safety catch), although the circumstances might have been different had the police been able to attend the scene as soon as they were notified of an illegally-set trap. Nevertheless, the fact that the Crown Office allowed a year’s worth of court hearings to pass by before deciding to abandon this case, and their unwillingness to communicate their specific concerns to the RSPB, is yet to be adequately addressed by the Crown Office.

The Crown Office’s response also does not explain (although to be fair, it wasn’t asked to) why dropping the prosecution against Andrew Duncan for alleged vicarious liability was deemed to be ‘not in the public interest’, and nor does it explain why a prosecution was not brought against the unnamed Edradynate Estate gamekeeper for the alleged poisoning of three buzzards, despite pleas from Police Scotland to do so.

The Crown Office’s letter to the Environment Committee ends with this:

‘COPFS remains committed to tackling wildlife crime, including raptor persecution. There is a strong presumption in favour of prosecution in cases reported to the Service where there is sufficient admissible evidence and prosecution is in the public interest‘.

You could have fooled us.

To be honest, as frustrating as it was to see these cases abandoned for what seem to us to be spurious reasons, the Crown Office’s unimpressive performance has probably helped move things along, because these dropped cases came at the time when the Scottish Government was already under severe public pressure to do something other than make vague promises to tackle wildlife crime. That’s not to say we are pleased with the outcome of these cases – far from it – but it’s quite likely that these failed prosecutions helped tip the balance and persuaded the Scottish Government that actually, the current system is failing and they need to find new ways of addressing the problem.

Gamekeeper Dick was convicted in August 2015 of killing a buzzard on the Newlands Estate, Dumfriesshire by striking it with rocks and repeatedly stamping on it (see here). Mr Dick was sentenced in September 2015 and was given a £2000 fine (see here). Mr Dick appealed his conviction but this appeal was rejected on 15 July 2016 (see here).

The Crown Office & Procurator Fiscal Service (COPFS) began vicarious liability proceedings against Mr Duncan in August 2015 but the case was repeatedly adjourned (a total of 13 court hearings) with two trial dates assigned but then later dropped (see here). These repeated delays were due in part to gamekeeper Dick’s appeal against his conviction but in part for other reasons which have not been explained.

As the third trial date (24 April 2017) approached, we were somewhat surprised to learn last week that the case had been abandoned. We asked COPFS why this had happened and this is their response:

“All cases are continually kept under review, and after taking consideration of the full circumstances of this case, and all of the available evidence, Crown Counsel concluded that it was not in the public interest to continue the case to trial.

COPFS remain committed to tackling raptor persecution and there is a strong presumption in favour of prosecution of the cases reported to us where there is sufficient evidence and it is in the public interest to do so“.

There is no detail about why proceeding to trial ‘was not in the public interest’ and indeed, the COPFS does not have to disclose this information. We do know that the COPFS Prosecution Code outlines a large number of factors that are to be considered for a public interest test, including:

The nature and gravity of the offence

The impact of the offence on the victim and other witnesses

The age, background and personal circumstances of the accused

The age and personal circumstances of the victim and other witnesses

The attitude of the victim

The motive for the crime

The age of the offence

Mitigating circumstances

The effect of prosecution on the accused

The risk of further offending

The availability of a more appropriate civil remedy

The Powers of the court

Public concern

Without knowing the specific details of the evidence in this case it is pointless to speculate about why the case was abandoned (and for anyone commenting on this post, please be careful not to libel Mr Duncan). We just have to accept that it was abandoned, as frustrating as that is, but we do hope that the COPFS will share some detail with the reporting agencies so that lessons can be learned for future cases.

Journalist Rob Edwards has written an interesting piece about the case, published today on The Ferret website (here), which includes some news about the Newland Estate’s membership of Scottish Land & Estates and its accredited membership of the SLE-administered Wildlife Estates Scotland initiative.

In a wider context, this abandoned case is highly significant. Contrary to the COPFS’ decision, there is huge and legitimate public concern and interest about wildlife crime enforcement, particularly in respect to raptor persecution crimes. The Scottish Government is keenly aware of this and has come under increasing pressure in recent years to introduce new measures to tackle the problem. Vicarious liability was one of those new measures (introduced on 1 January 2012) but to date, only two cases have resulted in a conviction: one in December 2014 (see here) and one in December 2015 (see here). Both related to raptor persecution on low ground shoots, not on intensively managed driven grouse moors where raptor persecution is known to still be a common occurrence. One further case in October 2015 did not reach the prosecution stage due, we believe, to the difficulties associated with identifying the management structure on the estate where the crimes were committed (see here).

Given the low success rate of vicarious liability, alongside the continued illegal persecution of raptors on game-shooting estates, it is clear that the Scottish Government needs to do more.

Tomorrow, the Scottish Parliament’s Environment Committee will hear evidence from the Scottish Raptor Study Group (Logan Steele & Andrea Hudspeth) in support of their petition to introduce a state-regulated licensing scheme for all game bird shooting in Scotland. Part of this licensing scheme would include provisions for sanctions against estates where raptor persecution takes place. Evidence will also be heard from various stakeholders including RSPB Scotland (Duncan Orr-Ewing), Scottish Gamekeepers’ Association (Andy Smith), SNH (Robbie Kernahan) and Scottish Land & Estates (David Johnstone). The evidence session begins at 10am and can be watched live on Scottish Parliament TV (here) and we’ll post the transcript when it becomes available later in the week.

Regular blog readers will know that we’ve been tracking the vicarious liability prosecution of landowner Andrew Walter Bryce Duncan, who was alleged to be vicariously liable for the crimes committed by gamekeeper William (Billy) Dick in April 2014.

Gamekeeper Dick was convicted in August 2015 of killing a buzzard on the Newlands Estate, Dumfriesshire by striking it with rocks and repeatedly stamping on it (see here). Mr Dick was sentenced in September 2015 and was given a £2000 fine (see here). Mr Dick appealed his conviction but this appeal was rejected on 15 July 2016 (see here).

Vicarious liability proceedings against Mr Duncan began in August 2015 and the case has been repeatedly adjourned since then (a total of 13 court hearings) with two trial dates assigned but then later dropped (see here). These repeated delays were due in part to Mr Dick’s appeal against his conviction but in part for other reasons which have not been explained.

The third trial date (24 April 2017) looked set to go ahead but today we’ve learned that the Crown Office & Procurator Fiscal Service has dropped all proceedings. We do not yet know why the prosecution has been dropped.

Whatever the reason for dropping the prosecution, this result does not reflect well on the efficiency of wildlife crime enforcement measures in Scotland.

Vicarious liability in relation to the persecution of raptors in Scotland (where one person may potentially be legally responsible for the criminal actions of another person working under their supervision) came in to effect over five years ago on 1st January 2012 as a provision in the Wildlife and Natural Environment (Scotland) Act 2011. It was introduced as an amendment to the draft WANE Bill in November 2010 by the then Scottish Environment Minister, Roseanna Cunningham. It was a direct response to the unrelenting problem of illegal raptor persecution and the apparent inability/unwillingness of the game shooting lobby to get their own house (grouse moors) in order.

To date there have only been two successful prosecutions/convictions: one in December 2014 (see here) and one in December 2015 (see here). Both related to raptor persecution on low ground shoots, not on intensively managed driven grouse moors. One further case in October 2015 did not reach the prosecution stage due, we believe, to the difficulties associated with identifying the management structure on the estate where the crimes were committed (see here). And now this latest case has failed, for reasons as yet unknown.

Two successful prosecutions in five years is not very impressive, and won’t be much of a deterrent for those who continue to kill raptors safe in the knowledge that the probability of being caught, prosecuted and convicted is still virtually nil.

In November 2015, the Scottish Government’s statutory conservation agency, Scottish Natural Heritage, imposed a General Licence restriction order on a number of estates where it was believed raptor persecution had taken place but there was insufficient evidence to prosecute any individual (see here).

These restrictions were the first to be imposed since this new enforcement measure became available on 1 January 2014.

Two of the four estates were in Stirlingshire (the grouse shooting Burnfoot Estate and neighbouring Wester Cringate Estate, where several poisoned raptors and an illegally-set trap had been found) and two were in the Scottish Borders (the grouse shooting Raeshaw Estate and neighbouring Corsehope Farm, where illegally-set traps had been placed).

The General Licence restriction on all four estates was to run from 13 November 2015 to 12 November 2018, which meant that certain types of ‘pest’ control were prohibited unless the Estates applied for a specific individual licence that would be subject to tighter controls.

Raeshaw Estate (and neighbouring Corsehope Farm, where ‘pest’ control is undertaken by Raeshaw gamekeepers) made a legal challenge against SNH’s decision and in February 2016 they petitioned for a judicial review.

A judicial review challenges a decision made by a public body (in this case SNH) and examines whether the right procedures have been followed (i.e. with procedural fairness, within the legal powers of the public body, and with rationality).

The judicial review was heard in January 2017 and we have been awaiting the court’s judgement. It was published yesterday and can be read here: Raeshaw judicial review decision

We don’t intend to discuss the details of the court’s judgement – you can read those for yourselves (but do pay attention to the bit about the homemade trap, identical to the illegally-set homemade trap placed out on the hill, found in the possession of one of the gamekeepers – it’s quite interesting), but in summary, the court decided that SNH had acted fairly and with due regard to the stated rationale for imposing a General Licence restriction as laid out in SNH’s framework for implementing restrictions. As we understand it, there is a right to appeal to a higher court so we’ll have to wait and see whether Raeshaw Estate decides to take this option.

For now, this judgement is very, very good news. We, and others, have been highly critical of SNH’s handling of the General Licence restrictions, particularly when they subsequently issued individual licences to Raeshaw and Corsehope which effectively circumvented the supposed sanction of the General Licence restriction (see here, here, here, here). Yesterday’s court judgement does not alter our view on that and we will continue to challenge SNH about the so-called ‘tighter controls’ on these individual licences.

However, what yesterday’s court judgement does (or should) do, is open the floodgates for further General Licence restrictions to be imposed on other estates where there is evidence of raptor persecution. We know that SNH has a backlog of cases, dating back to 2014, and they’ve been sitting on those, justifiably, while the judicial review process has been underway. Now that the Court of Session has validated SNH’s procedures for imposing General Licence restrictions, we hope they will get on with handing out some more.